Mr. Eye was a 92-year-old Medicare-insured patient who was lucid and hard of hearing and had a destructive basal cell carcinoma of the inner canthus. He lived in a nursing home, and his children both lived 10 hours away.

The children brought him to Dr. Skin's office, making it perfectly clear that their dad was lucid and wanted the best of care. Mr. Eye's children explained to Dr. Skin and his staff that their father was hearing impaired and all conversations with him would need to take this impairment into account.

Mr. Eye was to be scheduled for Mohs micrographic surgery. Unfortunately, before his surgery he became ill and did not recover, nor did he return to Dr. Skin's office for six months.

At the time of his return, Mr. Eye's children had moved 2,000 miles away. They were unconcerned because they had made clear their desires six months earlier. Unfortunately, Dr. Skin's staff had forgotten about Mr. Eye's hearing impairment. They took his lack of response as senility consistent with his age.

Dr. Skin chose to use only palliative treatment while watching the carcinoma invade Mr. Eye's orbit over the next year. Mr. Eye's children were horrified. Had the staff only provided an assisted hearing device, Mr. Eye — who was still very lucid — would have made perfectly clear that he wanted aggressive treatment. Instead, he now requires an exenteration of his eyes.

What is Dr. Skin's liability for not having provided an assisted hearing device to his patient? Dr. Skin is a top-notch dermatologist who easily could have provided such assistance, yet nothing was done.